People Like Us understands that the government will soon table a bill in Parliament to decriminalise non-vaginal sex for heterosexuals only, leaving it an offence for gay and lesbian couples. Such a move is highly discriminatory and hurtful to Singapore’s interests.

Both Sections 377 and 377A of the Penal Code should instead be repealed completely.

Reach Singapore (formerly known as the Feedback Unit), in issuing a call for consultation over the proposed amendments to the Penal Code, described the proposal (pertaining to Section 377) thus:

“10. Currently, s.377 criminalises all forms of carnal intercourse against the order of nature, other than vaginal intercourse, between a man, woman, or an animal, regardless of whether consent was obtained or if the act was performed in a public or private place. It is proposed that s.377 be re-scoped such that anal and oral sex, if done in private between a consenting adult heterosexual couple aged 16 years old and above, would no longer be criminalised. As part of the re-scoping, the obsolete term ‘carnal intercourse against the order of nature’ will be removed.”

People Like Us notes the highly discriminatory intent of this proposed amendment, decriminalising anal and oral sex for heterosexuals, but leaving it unchanged for gay, lesbian, bisexual and transsexual (GLBT) persons.

Such state-led discrimination reinforces prejudice and homophobia in society, to the detriment of Singapore:

1. It damages family and public life by encouraging deception and dishonesty (pretending to be straight) when people try to avoid discrimination and conflict;

2. It creates pressure to emigrate, thus

(a) undermining Singapore’s desire to retain our native talent pool. Somewhere around 10 percent of each generation is GLBT and to bleed population each generation through such discriminatory policies is unwise and near-sighted;

(b) splitting families when we say at the same time that stable and supportive families should be the bedrock of our society;

4. It restricts the ability of the government to respond to the threat of HIV, when government agencies feel that they cannot engage with the gay community in any way except a condemnatory one. Failure to deal with HIV in the gay community puts the larger community at risk.

SECTION 377A

Besides the proposal to amend Section 377 in a discriminatory fashion, People Like Us notes that there is no proposal concerning Section 377A, leaving it intact. This Section says,

“Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”

This again is extremely discriminatory through its specific limitation to sexual contact between one male and another.

Both Sections 377 and 377A should be repealed completely.

WHY SECTION 377 IS NOT NEEDED

Some might argue that a reworded Section 377 is still necessary for anal and oral sex performed in public, with minors or in non-consensual situations. This is not so, as there are other existing and proposed laws that deal with each of these situations.

PUBLIC INDECENCY

If there are concerns about indecent behaviour in public, Singapore already has a clause in Section 20 of the Miscellaneous Offences (Public order and nuisance) Act that deals with it. This one says,

“Any person who is found guilty of any riotous, disorderly or indecent behaviour in any public road or in any public place or place of public amusement or resort, or in the immediate vicinity of, or in, any court, public office, police station or place of worship, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 or to imprisonment for a term not exceeding one month and, in the case of a second or subsequent conviction, to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 6 months.”

This should be quite adequate even if consenting adults are engaging in anal or oral sex in public. There is thus no need to retain a reworded Section 377 to cover such instances.

SEX WITH PERSONS UNDER 16

On the question of adults having sexual contact with children, Section 7 of the Children and Young Persons Act already criminalises this. This clause says,

“Any person who, in public or private, commits or abets the commission of or procures or attempts to procure the commission by any person of any obscene or indecent act with any child or young person shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a second or subsequent conviction, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 4 years or to both.”

The Act defines a Young Person as someone below 16 years of age and a child as someone below 14 years of age.

In addition, there is also a proposal to insert a new section into the Penal Code that addresses sexual penetration and prostitution of minors. The consultation paper issued by Reach Singapore says,

“18. To protect minors against sexual exploitation in Singapore, sexual penetration of a minor under 16 years of age and prostitution of a minor under 18 years of age will be criminalised. “

With regard to penalties, it says,

“Imprisonment for a term not exceeding 10 years or fine or both, for the new offence criminalising penetrative sexual activities with a minor below 16 years of age” and

“Imprisonment for a term not exceeding 7 years or fine or both, for the new offence for a person purchasing sexual services from another person who is under 18 years of age.”

As in the matter of public indecency, a reworded Section 377 is not needed to cover cases of sex with minors.

NON-CONSENSUAL SITUATIONS

Whereas for some years now, Section 377 has been used primarily for cases of forced anal or oral sex involving women, boys and girls as victims, the proposed amendments to the Penal Code include a new provision specific to non-consensual acts. The consultation paper says,

“20. A new offence of sexual assault by penetration would also be introduced. The intention is to prosecute non-consensual penetrative sexual acts, such as oral and anal sex and using body parts (other than the penis) and objects. The offence would also cover the scenario where a person is compelled by another to penetrate a third person. With oral and anal sex decriminalised from s.377, the new offence is required to cover non-consensual oral and anal sex, along with the appropriate penalties for such acts.”

Once again, retaining Section 377 is not needed to cover non-consensual situations.

UNCONSTITUTIONAL

Clause 12(1) of the Singapore Constitution states,

“All persons are equal before the law and entitled to the equal protection of the law.”

The crux of the matter is that the proposed amendments discriminate against GLBT persons as a class of citizens on the ground of their gender. A female can have oral and anal sex with a male because she is a female. However a male cannot have oral and anal sex with a male because he is a male. The ability to have non-offensive sex with a male is determined by the acting party’s gender. This is highly discriminatory since it criminalises the act based purely on the gender of the acting party.

While Article 12(2) does not stipulate gender as a non-discriminatory ground, as journalist Andy Ho of the Straits Times noted in a recent column, Art 12(2) merely unpacks the principle behind Art 12(1).

Likewise, Section 377A should be repealed on the same principle.

Some may argue that gay men can have sex with females, just like straight men and therefore no discrimination exists. However, as New York Chief Judge Judith Kaye said in Hernandes v. Robles, July 2006, “the purported right of gays and lesbians to enter into marriages with different-sex partners to whom they have no innate attraction cannot possibly cure the constitutional violation at issue here….Limiting marriage to opposite-sex couples undeniably restricts gays and lesbians from marrying their chosen same sex partners whom to [them] may be irreplaceable and thus constitutes discrimination based on sexual orientation.” (Internal quotation marks removed).

Similarly, limiting oral and anal sex to members of a gender gays and lesbians have no innate sexual attraction to undeniably restricts gays and lesbians from having sex with their chosen partners and constitutes discrimination based on sexual orientation and/or gender.

OBSOLETE

Cabinet ministers, including Minister Mentor Lee Kuan Yew in December 1998, have from time to time indicated that Sections 377 and 377A would not be used against gay people in consensual situations.

Indeed, People Like Us knows of no recent case where this is so. This plainly demonstrates that Singapore society does not need to criminalise GLBT persons. The non-use of the law argues for its repeal, not its retention.

CONCLUSION

Given the above, there is really no need for Sections 377 and 377A in terms of the public interest. Issues such as public indecency, sex with minors and non-consensual sex are dealt with by other sections of the law.

Consensual same-sex relationships do not create victims; it is unsound to have laws over private lives where no injury can be demonstrated. The fact that the State has desisted from entrapment and prosecution in recent years is implicit acknowledgement of this principle.

Hence, there is no cogent reason for amending Section 377 in such a limited manner, restricting its applicability to GLBT persons, and leaving Section 377A untouched. Doing so only testifies to the exclusionary and discriminatory intent behind the move, with consequences, as enumerated above, that contradict the best interests for Singapore’s future.